Rivera v. Gore et al

Filing 5

ORDER: 1) Granting Motion to Proceed in Forma Pauperis (ECF No. 2 ) and 2) Dismissing Complaint for Failing to State a Claim and for Seeking Damages Against Immune Defendant Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). The Watch Com mander of the SBDF, or his designee, is directed to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding mont h income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Plaintiff is Granted forty-five (45) days leave from the date of this Order in which to file an Amended Complaint which cures the deficiencies of pleading noted. If Plaintiff fails to file an Amended Complaint within the time provided, the Court will enter a final Order dismissing this civil action. Signed by Judge William Q. Hayes on 02/21/2018. (All non-registered users served via U.S. Mail Service)(Copy of this Order served on the Watch Commander SBDF at address listed in Order via U.S. Mail Service)(ajs)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

GLYNDON RIVERA,
Booking No. 15743971,

Case No.: 3:17-cv-02225-WQH-NLS
ORDER:

Plaintiff,

13
vs.

14

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2]

15
16

BILL GORE, Sheriff, et al.,
AND

Defendants.

17

2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM AND
FOR SEEKING DAMAGES
AGAINST IMMUNE DEFENDANT
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)

18
19
20
21
22
23

GLYNDON RIVERA (“Plaintiff”), while detained at the San Diego County

24

Sheriff’s Department South Bay Detention Facility (“SBDF”) and proceeding pro se, has

25

filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1 at 1).

26

Plaintiff has not paid the civil filing fee required by 28 U.S.C. § 1914(a); instead

27

he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)

28

(ECF No. 2).
1
3:17-cv-02225-WQH-NLS

1

I.

Motion to Proceed In Forma Pauperis

2

All parties instituting any civil action, suit or proceeding in a district court of the

3

United States, except an application for writ of habeas corpus, must pay a filing fee of

4

$400.1 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

5

prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

6

§ 1915(a). Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

7

Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to

8

proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

9

Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185

10

(9th Cir. 2015), and regardless of whether his action is ultimately dismissed, 28 U.S.C.

11

§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

12

Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

13

“certified copy of the trust fund account statement (or institutional equivalent) for . . . the

14

six-month period immediately preceding the filing of the complaint.” 28 U.S.C.

15

§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

16

trust account statement, the Court assesses an initial payment of 20% of (a) the average

17

monthly deposits in the account for the past six months, or (b) the average monthly

18

balance in the account for the past six months, whichever is greater, unless the prisoner

19

has no assets. 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

20

custody of the prisoner then collects subsequent payments, assessed at 20% of the

21

preceding month’s income, in any month in which his account exceeds $10, and forwards

22

those payments to the Court until the entire filing fee is paid. 28 U.S.C. § 1915(b)(2);

23

Bruce, 136 S. Ct. at 629.

24
25
26
27
28

1

In addition to the $350 statutory fee, civil litigants must pay an additional
administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees,
District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50
administrative fee does not apply to persons granted leave to proceed IFP. Id.
2
3:17-cv-02225-WQH-NLS

1

In support of his IFP Motion, Plaintiff has submitted a Prison Certificate issued by

2

an SBDF Sergeant attesting as to his trust account activity and balances. See ECF No. 2

3

at 4; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This

4

statement shows that while Plaintiff carried an average monthly balance of $193.00, he

5

had an average monthly deposit of only $.14 to his account for the six-month period

6

preceding the filing of this action, and an available balance of $.86 on the books at the

7

time he filed suit. ECF No. 2 at 4. Thus, the Court assesses Plaintiff’s initial partial filing

8

fee to be $38.60 pursuant to 28 U.S.C. § 1915(b)(1), but acknowledges he may be unable

9

to pay that initial fee at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no

10

event shall a prisoner be prohibited from bringing a civil action or appealing a civil action

11

or criminal judgment for the reason that the prisoner has no assets and no means by

12

which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at

13

850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of

14

a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds

15

available to him when payment is ordered.”).
Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2),

16
17

declines to exact the assessed initial filing fee because his trust account statement

18

indicates he may have “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the

19

Watch Commander of the SBDF, or his designee, to instead collect the entire $350

20

balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of

21

the Court pursuant to the installment payment provisions set forth in 28 U.S.C.

22

§ 1915(b)(1).

23

II.

Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

24

A.

25

Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre-

Standard of Review

26

answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

27

statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

28

it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
3
3:17-cv-02225-WQH-NLS

1

who are immune. Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc)

2

(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

3

2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

4

the targets of frivolous or malicious suits need not bear the expense of responding.’”

5

Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

6

Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

7

“The standard for determining whether a plaintiff has failed to state a claim upon

8

which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

9

Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

10

F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

11

Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

12

applied in the context of failure to state a claim under Federal Rule of Civil Procedure

13

12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,

14

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

15

556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

16

Detailed factual allegations are not required, but “[t]hreadbare recitals of the

17

elements of a cause of action, supported by mere conclusory statements, do not suffice.”

18

Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

19

relief [is] . . . a context-specific task that requires the reviewing court to draw on its

20

judicial experience and common sense.” Id. The “mere possibility of misconduct” or

21

“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

22

this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

23

(9th Cir. 2009).

24

B.

25

Plaintiff claims San Diego County Sheriff Bill Gore, San Diego County Superior

Plaintiff’s Allegations

26

Court Judge Dahlquist, John Doe, identified only as a San Diego County “Adoptions

27

Director,” and Teresa Gomez, the mother of his son, have violated his First, Eighth, and

28

Fourteenth Amendment rights while he has been held in San Diego Sheriff’s Department
4
3:17-cv-02225-WQH-NLS

1

custody and during ongoing criminal and related parental termination proceedings. (ECF

2

No. 1 at 1–6).2
Specifically, Plaintiff claims San Diego County Sheriff’s Department deputies,

3
4

“under the inadequate supervision of Sheriff Bill Gore,” violated his right to access to the

5

courts “on or about” July 17, 2015, when he was “denied [his] constitutional right to be

6

present in family court.” Id. at 3–4. Plaintiff contends the Sheriff permitted “false

7

testimony” that he was a “dangerous convicted felon” to be introduced by a district

8

attorney during a bail review hearing in Vista Superior Court in April 2017, id. at 5, and

9

that Judge Dahlquist, “biased” by the “repeated and reckless mistruths in the bail report,”

10

imposed “excessive bail” as a result. Id. at 2, 5.
Plaintiff further claims that while an unnamed Director of the County’s “Adoptions

11
12

Department” hired two attorneys to represent him during termination proceedings, those

13

attorneys were “ineffective,” and “pressured the child . . . under false pretenses.” Id. at 4.

14

Defendant Gomez, his child’s mother, is also alleged to have “deceptively us[ed] the

15

courts to claim [Plaintiff] . . . intend[ed] to abandon [their] child.” Id. at 2.

16

Finally, Plaintiff claims to have lost two teeth while in custody due to Sheriff

17

Gore’s “poor supervision” and “inadequate policies for dental care,” id. at 6, and to have

18

been “assaulted” by another inmate “on or around” October or November 2015, based on

19

Gore’s “lack of supervision and substandard training of the Vista deputies.” (ECF No. 4

20

at 2).

21

Plaintiff seeks $15 million in general and punitive damages, as well as injunctive

22
23

Plaintiff attaches as an exhibit to his Complaint a copy of a “Petition for Freedom
From Parental Custody and Control” filed in the North County Division of San Diego
Superior Court on June 20, 2017, in Case No. AN16035, by attorneys on behalf of Jose
Ines Salazar Martinez and [Defendant] Teresa Gomez. See ECF No. 1 at 9-10. The Petition
requests a judgment declaring Plaintiff’s child free from his custody and control based on
his alleged abandonment and his having been convicted of a felony “the facts and of which
are of such a nature so as to prove the unfitness of the parent(s) to have the future control
and custody of the child.” Id.
2

24
25
26
27
28

5
3:17-cv-02225-WQH-NLS

1

relief against Judge Dahlquist from “proceeding” further, the outright “dismissal” of his

2

ongoing criminal proceedings in San Diego Superior Court Case No. SCN347434,3 and

3

for this Court to “order a father son visitation” under the “familial rights doctrine.” ECF

4

No. 1 at 8; ECF No. 4 at 1.

5

C.

6

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

42 U.S.C. § 1983

7

elements: (1) that a right secured by the Constitution or laws of the United States was

8

violated, and (2) that the alleged violation was committed by a person acting under the

9

color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

10

1035–36 (9th Cir. 2015).

11

D.

12

First, Plaintiff seeks to hold the mother of his child, Teresa Gomez, whom he

13

identifies as a “housekeeper,” liable for “using [the] courts” to seek the termination of his

14

parental rights on the grounds of his abandonment and felony conviction. (ECF No. 1 at

15

2–4).

Teresa Gomez

16
17
18
19
20
21
22
23
24
25
26
27
28

Courts “‘may take notice of proceedings in other courts, both within and without the
federal judicial system, if those proceedings have a direct relation to matters at issue.’”
U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th
Cir.1992); Holguin v. City of San Diego, 135 F. Supp. 3d 1151, 1155 (S.D. Cal. 2015).
Accordingly, this Court takes judicial notice of Plaintiff’s pending criminal charges for
multiple violations of Cal. Penal Code § 269 (aggravated sexual assault of a child), Cal.
Penal Code § 288(a) (lewd and lascivious behavior on a person under 14), Cal. Penal
Code § 289(j) (sexual penetration of a person under 14 and more than 10 years younger),
Cal. Penal Code § 311.4(c) (use of minor to perform prohibited acts), Cal. Penal Code
§ 228(a)(C)(1) (oral copulation on person under 14), Cal. Penal Code § 288.2(a)
(distribution of child pornography), and Cal. Penal Code § 236/237(a) (false
imprisonment with violence) in Case No. SCN347434. See
http://www.sandiego.courts.ca.gov/portal/online/calendar/f_vccal5.html;
http://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=CEPdOlz%2bxwqat
HqkX1kVNvcqW%2f3ntU99oFHSbf%2brj58%3d#!.
3

6
3:17-cv-02225-WQH-NLS

1

However, Plaintiff offers no plausible facts to suggest that Gomez acted “under

2

color of state law” when she filed a petition to terminate Plaintiff’s parental rights in San

3

Diego Superior Court. See West, 487 U.S. at 48; Sutton v. Providence St. Joseph Med.

4

Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (The party charged with a constitutional

5

deprivation under § 1983 must be a person who may fairly be said to be a governmental

6

actor.) (citation and quotations omitted).

7

The Constitution protects individual rights only from government action and not

8

from private action; it is only when the government is responsible for the specific conduct

9

of which the plaintiff complains that individual constitutional rights are implicated.

10

Single Moms, Inc. v. Mont. Power Co., 331 F.3d 743, 746–47 (9th Cir. 2003). Generally,

11

private parties do not act under color of state law. Price v. Hawai’i, 939 F.2d 702, 707–

12

08 (9th Cir. 1991). Section “1983 excludes from its reach merely private conduct, no

13

matter how discriminatory or wrong.” Sutton, 193 F.3d at 835 (citing Am. Mfrs. Mut. Ins.

14

Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted));

15

see also Ouzts v. Md. Nat’l Ins. Co., 505 F.2d 547, 551 (9th Cir.1974) (a purely private

16

actor may be liable for his misconduct in state court, but his conduct is not actionable

17

under Section 1983, regardless of how egregious).

18

In order for private conduct to constitute governmental action, “something more”

19

must be alleged. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982) (“Action

20

by a private party pursuant to [§ 1983], without something more, [i]s not sufficient to

21

justify a characterization of that party as a ‘state actor.’”). Courts have used four

22

different factors or tests to identify what constitutes “something more”: (1) public

23

function, (2) joint action, (3) governmental compulsion or coercion, and (4) governmental

24

nexus. See id.; Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir. 1997); Parks Sch. of

25

Bus., Inc. v. Symington, 51 F.3d 1480, 1486 (9th Cir. 1995); Gorenc v. Salt River Project

26

Agric. Improvement and Power Dist., 869 F.2d 503, 506 (9th Cir. 1989).

27

Here, Plaintiff has failed to allege facts sufficient to plausibly show that the mother

28

of his minor child performed any public function traditionally reserved to the state; acted
7
3:17-cv-02225-WQH-NLS

1

as a willful participant in joint action with government agents; or was compelled or

2

coerced by, or had any connection whatsoever with, the state when she filed a petition in

3

Superior Court seeking to terminate Plaintiff’s parental rights. Therefore, Plaintiff’s

4

Complaint as to Defendant Gomez must be dismissed for failing to state a claim upon

5

which § 1983 relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1);

6

Lopez, 203 F.3d at 1126–27 ; Wilhelm, 680 F.3d at 1121.

7

E.

8

Second, Plaintiff seeks to sue San Diego County Sheriff Bill Gore for “fail[ing] to

9

Sheriff Gore

properly supervise [his] subordinates,” and for inadequately training them. (ECF No. 1 at

10

2–3, 5–6). Plaintiff alleges broadly that Gore’s failures as the head of the Sheriff’s

11

Department deprived him of his “parental familial rights” and resulted in the

12

prosecution’s introduction of “false testimony” during an April 2017 bail review hearing,

13

an assault by a fellow inmate in late 2015, and the loss of two of his teeth. Id. at 3, 5–6;

14

ECF No. 4 at 2.

15

Plaintiff fails to state a claim upon which § 1983 relief can be granted, however,

16

because he sets forth no individualized allegations of wrongdoing by Sheriff Gore, and

17

instead seeks to hold him vicariously liable for the actions of other unnamed Sheriff’s

18

Department personnel. See Iqbal, 556 U.S. at 676 (“Because vicarious liability is

19

inapplicable to . . . § 1983 suits,” § 1983 plaintiffs “must plead that each Government-

20

official defendant, though the official’s own individual actions, has violated the

21

Constitution.”); see also Jones v. Community Redevelopment Agency of City of Los

22

Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at

23

least some degree of particularity overt acts which defendants engaged in” in order to

24

state a claim). “The inquiry into causation must be individualized and focus on the duties

25

and responsibilities of each individual defendant whose acts or omissions are alleged to

26

have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.

27

1988) (citing Rizzo v. Goode, 423 U.S. 362, 370 – 71 (1976)).

28

A plaintiff may only “hold supervisors individually liable in [§] 1983 suits when
8
3:17-cv-02225-WQH-NLS

1

culpable action, or inaction, is directly attributed to them.” Starr, 652 F.3d at 1207.

2

More specifically, a supervisor “causes” a constitutional deprivation if he (1) personally

3

participates in or directs a subordinate’s constitutional violation; or (2) the constitutional

4

deprivation can otherwise be “directly attributed” to the supervisor’s own culpable action

5

or inaction, even though the supervisor was not “physically present when the [plaintiff’s]

6

injury occurred.” Id. at 1206–07; see also Crowley v. Bannister, 734 F.3d 967, 977 (9th

7

Cir. 2013) (supervisor may be held liable under Section 1983 only if there is “a sufficient

8

causal connection between the supervisor’s wrongful conduct and the constitutional

9

violation”) (citations and internal quotation marks omitted).

10

Because Plaintiff does not offer any specific “factual content” that might allow the

11

Court to “draw the reasonable inference” that Sheriff Gore personally participated in any

12

unconstitutional conduct directed at Plaintiff, the Court finds his Complaint, as currently

13

pleaded, contains allegations which fail to “state a claim to relief that is plausible on its

14

face.” Iqbal, 556 U.S. at 568.

15

For this reason, all Plaintiff’s purported claims against Sheriff Gore must be

16

dismissed sua sponte for failing to state a claim upon which § 1983 relief may be granted.

17

See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1); Lopez, 203 F.3d at 1126–27 ; Wilhelm,

18

680 F.3d at 1121.

19

F.

20

Third, Plaintiff’s Complaint must be dismissed insofar as he seeks monetary

21

damages from San Diego Superior Court Judge Dalquist, who is alleged to have presided

22

over his bail review hearing, and who is absolutely immune. See 28 U.S.C.

23

§ 1915(e)(2)(B)(iii); Chavez v. Robinson, 817 F.3d 1162, 1167–68 (9th Cir. 2016) (noting

24

§ 1915(e)(2)(B)(iii) requires the court to dismiss an action “at any time” if it “seeks

25

monetary relief from a defendant who is immune from such relief.”).

Judge Dahlquist

26

Judges are absolutely immune from damage liability for acts which are judicial in

27

nature. Forrester v. White, 484 U.S. 219, 227–229 (1988); see also Stump v. Sparkman,

28

435 U.S. 349, 355–57 (1978); Pierson v. Ray, 386 U.S. 547, 553–55 (1967). Judicial
9
3:17-cv-02225-WQH-NLS

1

immunity applies to actions brought under 42 U.S.C. § 1983 for acts committed within

2

the scope of judicial duties, “even when such acts are in excess of their jurisdiction, and

3

are alleged to have been done maliciously or corruptly.” Stump, 435 U.S. at 356. “[A]

4

judge will not be deprived of immunity because the action he took was in error, was done

5

maliciously, or was in excess of his authority; rather, he will be subject to liability only

6

when he has acted in the clear absence of all jurisdiction.” Id. at 356–37 ; see also

7

Forrester, 484 U.S. at 227 (a judicial act “does not become less judicial by virtue of an

8

allegation of malice or corruption of motive”); Mireless v. Waco, 502 U.S. 9, 12 (1991).

9

Here, Plaintiff claims Judge Dahlquist violated his Eighth and Fourteenth

10

Amendment rights on April 25, 2017, in Vista Superior Court during a bail review

11

hearing. (ECF No. 1 at 5). Despite Plaintiff’s claims that Judge Dahlquist improperly

12

considered “false testimony,” id., criminal bail review proceedings are clearly matters

13

over which a trial judge has subject matter jurisdiction, see Ashelman v. Pope, 793 F.2d

14

1072, 1075 (9th Cir. 1986) (en banc) (judges are immune from damage actions for

15

judicial acts taken within the jurisdiction of their courts).

16

Therefore, Plaintiff’s claims for money damages against Judge Dahlquist must also

17

be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) and § 1915A(b)(2)

18

based on his absolute immunity. See Chavez v. Robinson, 817 F.3d 1162, 1167–68 (9th

19

Cir. 2016) (“Once a court has sufficient information to make a determination on

20

immunity, [§ 1915(e)(2)(B)(iii)] mandates dismissal.”).

21

G.

22

Finally, while “judicial immunity is not a bar to prospective injunctive relief,”

23

Pulliam v. Allen, 466 U.S. 522, 541–42 (1984), to the extent Plaintiff’s suit seeks to

24

challenge the validity of, or seek this Court’s intervention in, either his ongoing criminal

25

case in San Diego Superior Court Case No. SCN347434 or the parallel parental

26

termination proceeding instituted on behalf of his child’s mother in San Diego Superior

27

Court Case No. AN16035 relief is not available under 42 U.S.C. § 1983.

28

Younger Abstention

Federal courts may not interfere with ongoing state criminal, quasi-criminal
10
3:17-cv-02225-WQH-NLS

1

enforcement actions, or in civil “cases involving a state’s interest in enforcing the orders

2

and judgments of its courts,” absent extraordinary circumstances. Younger v. Harris, 401

3

U.S. 37, 43–54 (1971); see also Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584,

4

591 (2013); ReadyLink Healthcare, Inc. v. State Compensation Ins. Fund, 754 F.3d 754,

5

759 (9th Cir. 2014). A court may consider sua sponte whether Younger abstention should

6

be invoked at any point in the litigation. H.C. ex rel. Gordon v. Koppel, 203 F.3d 610,

7

613 (9th Cir. 2000). Abstention is proper regardless of whether the applicant seeks

8

declaratory relief, injunctive relief, or damages. See Mann v. Jett, 781 F.2d 1448, 1449

9

(9th Cir. 1986) (“When a state criminal prosecution has begun, the Younger rule directly

10

bars a declaratory judgment action” as well as a § 1983 action for declaratory relief and

11

damages “where such an action would have a substantially disruptive effect upon

12

ongoing state criminal proceedings.”); Gilbertson v. Albright, 381 F.3d 965, 984 (9th Cir.

13

2004) (en banc) (Younger abstention applies to actions for damages as it does to

14

declaratory and injunctive relief).

15

Here, Plaintiff alleges that both his criminal and related state parental termination

16

proceedings were “ongoing” at the time he filed his Complaint. ECF No. 1 at 3–5; ECF

17

No. 4 at 1. State proceedings are deemed ongoing until appellate review is completed.

18

Gilbertson, 381 F.3d at 969 n.4 (citation omitted). Moreover, there is no question that

19

Plaintiff’s criminal proceedings and the parental termination proceedings implicate

20

important state interests and “involve [the] state’s interest in enforcing orders and

21

judgments of its courts.” Sprint, 134 S. Ct. 593–94; ReadyLink, 754 F.3d at 759.

22

Specifically, Plaintiff requests the “dismissal of” SCN34734 and the “reduction of the

23

bail” set by Judge Dahlquist, (ECF No. 4 at 1), and asks this Court to order visitation,

24

issue a “cease and desist order” preventing further parental custody proceedings and

25

“quash” orders issued by the San Diego Superior Court in Case No. AN16035, ECF No.

26

1 at 4, 8; Moore v. Sims, 442 U.S. 415, 435 (1979) (noting family relations are a

27

traditional and important area of state concern). Finally, Plaintiff’s alleged violations of

28

his rights to be free of excessive bail, due process, equal protection, and speedy trial; see
11
3:17-cv-02225-WQH-NLS

1

ECF No. 1 at 3–8, ECF No. 4 at 1; are the type of claims the state courts afford an

2

adequate opportunity to raise on direct appeal, or via a writ of mandate in the state’s

3

courts, see, e.g., San Jose Silicon Valley Chamber of Commerce Political Action Comm.

4

v. City of San Jose, 546 F.3d 1087, 1095 (9th Cir. 2008). Therefore, Younger abstention

5

is required here because “only in the most unusual circumstances is a defendant entitled

6

to have federal interposition by way of injunction . . . until after the jury comes in,

7

judgment has been appealed from and the case concluded in the state courts.” Drury v.

8

Cox, 457 F.2d 764, 764–65 (9th Cir. 1972); ReadyLink, 754 F.3d at 759.

9

H.

Leave to Amend

In light of Plaintiff’s pro se status, the Court GRANTS Plaintiff leave to amend his

10
11

claims against Defendant Gore, and as to any other individual County Sheriff’s

12

Department officials whom he alleges may have acted with deliberate indifference to

13

either his safety or his serious dental needs while he was in their custody. See Rosati v.

14

Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro

15

se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of

16

the complaint could not be cured by amendment.’” (quoting Akhtar v. Mesa, 698 F.3d

17

1202, 1212 (9th Cir. 2012)); Lolli v. County of Orange, 351 F.3d 410, 418–19 (9th Cir.

18

2003) (pretrial detainee’s claim of medical deliberate indifference is analyzed under the

19

Fourteenth Amendment Due Process Clause rather than under the Eighth Amendment,

20

but same standards apply).
As to Plaintiff’s remaining claims against Defendants Dahlquist, John Doe County

21
22

Adoptions Director, and Teresa Gomez, however, leave to amend is DENIED as futile.

23

Rosati, 791 F.3d at 1039 (Leave to amend is not required if it is “absolutely clear that the

24

deficiencies of the complaint could not be cured by amendment.” (citations omitted)).

25

III.

Conclusion and Orders

26

For the reasons explained, the Court:

27

1.

GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2).

28

2.

DIRECTS the Watch Commander of the SBDF, or his designee, to collect
12
3:17-cv-02225-WQH-NLS

1

from Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing

2

monthly payments from his account in an amount equal to twenty percent (20%) of the

3

preceding month’s income and forwarding those payments to the Clerk of the Court each

4

time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

5

PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

6

ASSIGNED TO THIS ACTION.

7

3.

DIRECTS the Clerk of the Court to serve a copy of this Order on the Watch

8

Commander, San Diego County Sheriff’s Department South Bay Detention Facility, 500

9

Third Avenue, Chula Vista, California, 92110.

10

4.

DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim

11

upon which relief may be granted and for seeking damages against a defendant who is

12

absolutely immune pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b).

13

5.

GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

14

which to file an Amended Complaint which cures the deficiencies of pleading noted as to

15

Defendant Gore and any other County Sheriff’s Department officials whom he can allege

16

personally acted with deliberate indifference to a serious risk to his safety or dental

17

needs. Plaintiff’s Amended Complaint must be complete by itself without reference to

18

his original pleading. Defendants not named and any claim not re-alleged in his

19

Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1.

20

If Plaintiff fails to file an Amended Complaint within the time provided, the Court

21

will enter a final Order dismissing this civil action based both on Plaintiff’s failure to

22

state a claim upon which relief can be granted and his failure to prosecute in compliance

23

with a court order requiring amendment.

24

Dated: February 21, 2018

25
26
27
28
13
3:17-cv-02225-WQH-NLS